R v Tran

[2024] NSWSC 116

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Tran [2024] NSWSC 116

Hearing dates:

24 March 2023, 14 September 2023, 4 October 2023, 23 October 2023, 29 November 2023 and 11 December 2023

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The offender is sentenced to a term of imprisonment of 28 years commencing on 3 February 2021 and ending on 2 February 2049 with a non-parole period of 21 years commencing on 3 February 2021 and ending on 2 February 2042. The offender will be first eligible for release to parole on 2 February 2042.

Catchwords:

SENTENCE – murder – stabbing – trial before jury – initially allegations of mental illness and substantial impairment – guilty pleas entered to all charges on day 10 of the trial – stabbing motivated by obsession and jealousy – remorse – mental illness issues – prodromal schizophrenia diagnosed after offences – De La Rosa factors – specific and general deterrence

SENTENCE – break and enter with intent to commit serious indictable offence – assault – using carriage service to harass – s 166 Criminal Procedure Act

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code Act 1995 (Cth)

Criminal Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Milat v R; Klein v R [2014] NSWCCA 29

Muldrock v R (2011) 244 CLR 120; [2011] HCA 39

Category:

Principal judgment

Parties:

Rex (Crown)
David Tran (Offender)

Representation:

Counsel:
R Kotsis (Crown)
N Carroll (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
LY Criminal Lawyers (Offender)

File Number(s):

2020/00227489

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the publication or disclosure of any information revealing or tending to reveal the identity of the deceased’s daughter is supressed in furtherance of the statutory protection provided by s 15A of the Children Criminal Proceedings Act 1987 (NSW); and on the grounds that pursuant to s 8(1)(e), the order is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

JUDGMENT

1. On 7 November 2022, the offender, David Tran, was arraigned before a jury on an indictment that contained three counts.

2. All the offences on the indictment took place on 3 August 2020. The first count charged the offender with entering the house of Daiane Pelegrini at Oatlands, with intent to commit a serious indictable offence, namely intimidation (s 111(1), Crimes Act 1900 (NSW)). The second count of the indictment charged the offender with the murder of Daiane Pelegrini in contravention of (s 18(1)(a), Crimes Act). The third count of the indictment charged the offender with assaulting Steven Qaqos occasioning actual bodily harm to him (s 59(1), Crimes Act).

3. The offender pleaded not guilty to all charges. Counsel for the offender opened to the jury on the basis that the facts of what occurred on that day were broadly not in dispute, but that the offender relied on the defence of mental illness and the partial defence of substantial impairment.

4. Evidence was called by the Crown over the following two weeks. During the evidence of Dr Eagle (the forensic psychiatrist engaged by the Crown), the Court was informed on the morning of 18 November that the forensic psychiatrist retained on behalf of the offender, Dr Furst, had changed his opinion.

5. The offender entered a guilty plea to all three counts on the indictment. This was accepted in full satisfaction of the indictment and the jury was discharged. It now falls to me to sentence him for those three offences and a related offence on a s 166 certificate (Criminal Procedure Act 1986 (NSW)) of using a carriage service, (his phone) to menace, harass and offend Daiane between 9 June and 8 August 2020 in contravention of s 474.17(1), Criminal Code Act 1995 (Cth).

6. At the outset I note that it was not submitted that I should impose on Mr Tran the maximum penalty of life imprisonment (s 19A, Crimes Act) for the murder of Daiane. I am required to impose a life sentence if I am satisfied that the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met if a life sentence is imposed (Crimes (Sentencing Procedure) Act 1999 (NSW), (s 61(1), “Sentencing Act”). I am not so satisfied.

7. The standard non-parole period for the offence of murder is twenty years (Division 1A; Item 1, Sentencing Act).

8. The maximum penalty for count 1 - enter dwelling with intent, is ten years imprisonment and for assault - count 3 - five years imprisonment. Neither offence has a standard non-parole period prescribed. The maximum penalty for the use carriage service to menace, harass and offend is three years imprisonment.

9. In respect of the murder count, the Sentencing Act does not require me to undertake the sentencing exercise by treating the non-parole period as the necessary starting point or the end point in fixing the sentence (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [17]; “Muldrock”). Equally, the Court is not required to commence the sentencing exercise by asking whether there are reasons for not imposing the standard non-parole period in this case (Muldrock at [25]). Instead, I am required to bear in mind the legislative guideposts, being the standard non‑parole period and the maximum penalty. The Court must identify all of the factors relevant to the sentence, discuss their significance and then determine the appropriate sentence (Muldrock at [26], citing Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J).

The offences

10. A statement of Agreed Facts was signed by the offender and the Crown and tendered at the sentence hearing. It is in effect the Crown Case Statement now apparently accepted in its entirety by the offender. I will sentence the offender based on those agreed facts. Those facts are summarised in these remarks, not reproduced in full. Also tendered were the psychiatric reports and evidence of Dr Eagle, the 2023 report of Dr Nielssen, Psychiatrist, a treating report of Dr White, (a Career Medical Officer who managed the offender in custody), as well as police bodycam footage which recorded the aftermath of the murder and various things that the offender said to the police at that time.

11. Daiane was born in Brazil in 1987 and at the time of her death was only 33 years old. She moved to Australia in 2016 with her husband and her daughter who was then 4 years old.

12. Whilst living in Australia Daiane studied nursing and worked in aged care. She also worked in a massage parlour which provided paid sexual services.

13. In January 2019 Daiane and her husband and her daughter moved into a unit at [REDACTED] Street Oatlands. The unit was located on the top floor. Access to the unit was gained by a stairwell leading to a locked external gate. The gate opens to a large enclosed outdoor balcony or courtyard. The unit can then be accessed through two glass sliding doors.

14. Daiane met the offender at the massage parlour in about February 2020. They began a friendship of sorts. Whilst they continued their paid arrangement, they would also on occasion socialise away from the massage parlour.

15. Application of the terms “dating”, “friendship” or “romance” does not adequately reflect the complexities of the relationship between the offender and Daiane. The context was that the massage parlour was forced to close during the COVID-19 pandemic lockdowns from about March 2020. It is clear that Daiane was messaging and engaging with clients directly in order to earn income during this difficult time. She seems to have been the only breadwinner in the home at this time and had to find a way to pay the bills.

16. Around March 2020 Daiane began a relationship with Steven Qaqos. In April 2020 Daiane separated from her husband and made arrangements for him to move out.

17. On 16 April 2020 the offender told Daiane via Whatsapp that she was “his first proper girlfriend”. He regularly told her that he loved her. At the time the offender lived at home with his parents. He was unemployed and had never been in a relationship before. The offender and Daiane messaged one another daily on Whatsapp and continued socialising in person.

18. On 5 June 2020 Daiane had an argument with the offender. She was upset because he had come to her unit uninvited whilst her daughter and husband were there. Through Whatsapp she told him: “Don’t call me anymore finished”. She blocked the offender from sending her messages on Whatsapp. The offender then attempted contact via SMS. He apologised and asked why she had blocked him. He told her that he did not understand why she still wanted her husband in her life. He messaged: “I will never come to your house again without your proper permission anymore babe”.

19. Daiane told the offender that she “wanted a break” and that she may return to the massage parlour as she was low on money. The offender then transferred Daiane $1,000.00 with the transaction description: “I love you”. Daiane forgave the offender and it appears they continued their relationship.

20. On 9 June 2020 the offender reformatted Daiane’s laptop for her. To do so she provided the offender with passwords to her social media accounts and to the laptop. Records reveal that the offender later logged into her email and Instagram account on several occasions between 28 July 2020 and 1 August 2020

21. On 3 July 2020 whilst at Bundeena beach with her daughter, the offender turned up uninvited and was told by Daiane to leave.

22. On 7 July 2020 the offender joined the same gym as Daiane, despite his having a membership at a gym close to his home. He turned up at Daiane’s gym that night uninvited.

23. Over the next three to four weeks Daiane repeatedly asked the offender, by text and message, to stop calling her, stop messaging her and to leave her alone. He refused to do so, despite her threatening to call police.

Events leading up to the murder

24. On 27 July 2020 the offender attended Daiane’s address uninvited. At 11:35am, she messaged him: “Don’t come here anymore” and “I’m done with you”. The offender replied: “Talk to me properly babe”. She told him she would call the police next time. The offender apologised and said he would leave. He later promised by message not to do it again. Daiane then blocked him on Whatsapp.

25. On 28 July 2020 the offender obtained a job at Arndell Park. He also sent a private message to Daiane’s best friend Vivian Ribeiro who resided in Brazil: “Hi Vivian it’s David can you tell Daiane to unblock me please she is mad at me for giving her too much attention she told me that I’m smart and kind but I don’t understand why she wants to leave me please just get her to talk to me again”.

26. On 29 July 2020 the offender tried to log into Daiane’s email account. She complained about this to Mr Qaqos. She unblocked the offender on Whatsapp and wrote: “If you are trying to invade my account o(sic) gonna report you to the police”. She told the offender to stop trying to access her emails and resetting her Instagram password. The offender initially denied doing anything, but later texted: “I’ll stop…but you need to promise you won’t block”. Daiane said that she was done and told the offender to leave her alone.

27. On 30 July 2020 the offender started work at Silk Logistics in Eastern Creek. That evening Daiane messaged the offender about his new job. Later that evening, the offender messaged: “I am jealous you moving on” and then sent in excess of 60 sexually explicit messages over a 10 hour period. She asked him to stop. He did not and Daiane responded: “you have problem really no is no and over is over”.

28. On 31 July 2020 the offender called Daiane many times. She ignored or rejected the calls. Although rostered on at work he did not attend work. Mr Qaqos and Daiane went shopping that morning together. When they returned to her address, Daiane saw the offender’s car out the front in the street. CCTV footage obtained showed that his arrival had been about one hour twenty minutes prior.

29. She and Mr Qaqos stayed in the car to call the police but the police did not attend until much later, actually many hours later, 8:30pm. In the meantime Daiane had to use Mr Qaqos to fetch her car so that she could collect her daughter from school and return home, hurry into her unit and lock the door. Mr Qaqos observed the offender run into the complex after Daiane’s car. He saw Daiane telling the offender to go away. The offender began walking away. Mr Qaqos messaged Daiane: “Close your door”.

30. From 6:00pm that evening Daiane sent a number of messages to the offender. She told him to leave otherwise she would call the police. The offender replied: “Relax”, “I’m going” and “It was only to get your attention because you blocked me”. The offender sent Daiane numerous text messages accusing her of cheating. Daiane told the offender she was not his girlfriend to cheat on him and repeatedly asked him to leave and that she was going to call the police.

31. At 5:53pm and again at 6:16pm the offender messaged a man whom he had found on Daiane’s Instagram account, asking if he had gone on a date with Daiane.

32. At 6:35pm Mr Qaqos was so concerned that he drove to Parramatta Police Station and told police that the offender was still outside Daiane’s unit. He was told that police would be there shortly.

33. Mr Qaqos returned to [REDACTED] Street and saw the offender’s car was still there. Daiane told Mr Qaqos that she was safe inside her unit and that he could leave. Daiane later told Mr Qaqos that the offender again knocked on her door and she told him to go away.

34. At 8:38pm police arrived at the premises and spoke to Daiane and by then the offender had left the area.

35. At 9:32pm Daiane sent a photograph to the offender of a police car parked at the base of the stairs to her home and wrote “Just to let you know you can’t come anymore”.

36. The next morning Daiane had a locksmith attend to re-key the external gate lock to her home.

37. Throughout the day of 1 August 2020 the offender used his brother’s phone to send messages to Daiane requesting Daiane unblock him. He called her fifteen times. He drove to the unit complex and waited, spying on her. He continued to message and call her overnight.

38. On the afternoon of 2 August 2020 the offender walked up the stairs to Daiane’s unit and stood by the gate. He saw Daiane’s daughter playing on the balcony and said: “Can I talk to your mum?”. She replied: “Okay” and called out to her mother. Daiane came outside. The child heard the offender say: “Can I talk to you” and “I know you have a boyfriend”. Daiane replied: “Yeah, (the child’s) dad”. She told the offender that she would call the police. She then said she would call him tomorrow. The offender then left.

39. The offender made two separate bank transfers that day to Daiane’s account of $50.00 each. In the transaction descriptions he wrote, “can you unblock me” and “forgive me please”.

40. On Monday 3 August 2020 the offender called Daiane three times between 9:07am and 9:11am. Two of those calls were made to her phone and were not answered. The third was made to a phone used by Daiane’s daughter. He also emailed and messaged. She asked him to stop.

41. Between 6 June 2020 and 3 August 2020 the offender made hundreds of harassing phone calls and sent hundreds of messages and texts that form the basis of the offence on the s 166 Certificate of using carriage service to harass, menace and offend. He admits that was the fact.

42. At about 2:46pm on 3 August 2020 the offender parked his vehicle on a side street away from Daiane’s street so it would not be seen. He went to Daiane’s unit and climbed over the gate through the opening above the gate at the top of the stairs of Daiane’s unit. He did that with the intention to hide and then frighten and intimidate Daiane when she returned home. He remained hidden there while Mr Qaqos and Daiane returned briefly at 3:46pm and was still there when they came back again at 4:44pm.

43. At some time between accessing the unit after his arrival at about 2:49pm and 4:44pm, the offender went to the kitchen and took a large knife from the kitchen bench and went into Daiane’s bedroom and waited for her return home, armed with the knife.

44. On their return at about 4:44pm Mr Qaqos parked his vehicle in the visitor parking space and walked up the stairs with Daiane. While Mr Qaqos was washing his hands in the bathroom, Daiane went to her bedroom to fetch a jacket. While there she was attacked by the offender. She screamed. Mr Qaqos ran into the bedroom. He saw her on the floor on her back. The offender was on top of her stabbing her with the knife. Mr Qaqos tried to pull the offender away from Daiane. He tried three times before the offender turned and struck Mr Qaqos to his right forearm causing a 1.5cm laceration to his right arm and a 2-3mm laceration to his right palm and thumb. Mr Qaqos ran from the unit to seek help and call 000.

45. Police arrived and spoke to Mr Qaqos at 4:57pm. He told police that his friend had been stabbed. Other police drove around the corner and entered the unit. They found Daiane still alive but bleeding with multiple wounds, blood-soaked walls and floor, with a large knife on the floor in the bedroom. The offender “surrendered” to police.

46. The duration of the attack the offender made on Daiane is unknown. Based on known times and the timing on the police body worn cameras, the offender was inside the premises alone with Daiane for close to thirteen minutes.

47. The offender deliberately stabbed Daiane multiple times to various parts of her body, including her head, abdomen, breasts, genitals, arms and legs, inflicting over twenty wounds. I will not set out all the wounds, but I will describe the most significant ones because they reveal the vicious and prolonged nature of the attack.

48. There was a stab wound to the left side of the forehead where a small triangular metal fragment 7mm x 4mm penetrated the outer skull. Forensic Pathologist, Dr Elsie Burger, who conducted the autopsy on Daiane, said that this wound would have required a significant amount of force to go through the cortical bone. This metal fragment was in fact the tip of the knife used by the offender.

49. The deceased sustained seven stab wounds to her face and neck including a stab wound near the left ear, 7 to 8cm deep, terminating near the second cervical vertebra.

50. There were between 22 and 25 wounds to the trunk, eleven of which were stab wounds, with at least ten further punctate penetrating wounds to the front of her body. There were several wounds through, or very close to her breasts. One wound was above the right breast, 12 to 15cm deep, which penetrated the right lung. Dr Burger said this would have required a significant amount of force. Another wound to the middle chest, also 12 to 15cm deep, penetrated the sternum through to the diaphragm causing a defect to the left liver lobe and perforating the back walls of the stomach. The fact that this wound continued beyond the bone would have required a significant amount of force. There was a further wound to the deceased’s middle abdomen of at least 15cm depth which passed through the abdomen through the large bowel and ending near the left kidney.

51. Of particular significance were stab wounds to Daiane’s vagina. One wound was a sharp force injury, 6.8cm in depth that transected the outer lip of the vagina. A piece of fabric from her underwear was recovered post-mortem towards the back of the deceased’s vagina, the fabric travelling into the vagina with the knife during one of the stab motions.

24. There were multiple knife wounds to her arms and legs and defensive wounds on both hands.

25. I have concluded that there is no doubt whatsoever that in stabbing Daiane repeatedly and viciously in this way, and leaving her to bleed, he intended to kill her. In his record of interview the offender told police that she had begged him to call for an ambulance. She told him she forgave him - no doubt a desperate attempt to negotiate for her life - but he did nothing to help her.

26. When police attended Daiane was still alive but fatally wounded. Paramedic assistance arrived within minutes, but she was tragically unable to be saved and was pronounced dead at 6:17pm at Westmead Hospital.

27. What the offender said to police at the time is important as to his state of mind at the time he killed Daiane. He told police that he had been in an intimate relationship with Daiane for six to seven months but she told him that she no longer wanted to be with him. He came to the unit at about 4:00pm to “catch her cheating”. He saw her with someone else so he got the knife. When asked how many times he used the knife, he said: “I’m not sure, I lost count, I almost fainted in there when I saw the blood… I had an anxiety attack, anxiety attack, and my vision’s just went so blurry I couldn’t breathe”.

28. He said that he had her password to Whatsapp and Instagram and that she “started lying, and that’s when I caught on… she was flirting and sending pictures… she used all my money up and then she broke up with me, started seeing other people”.

29. I have concluded beyond any doubt that the offender killed Daiane because he was angry and jealous. He could not cope with her rejection of him and that she had moved on with someone else and that she did not want to see him anymore.

The question of the offender’s mental health

58. Before I proceed to sentencing principles and their application to this offender, I need to outline the history as revealed by the evidence tendered on sentence of the offender’s now diagnosed chronic schizophrenia.

59. The offender told police on his arrest that he “thought he had schizophrenia”. He expressed suicidal ideas to police and was taken to Westmead Hospital and assessed. He gave an account of his family members “coughing” which to him had hidden meaning. A few weeks later Dr Ho, a psychiatrist at Parklea diagnosed possible prodromal phase of schizophrenia which is a period of decline in psychosocial functioning and early psychotic symptoms prior to the development of frank psychosis. Dr Ho commenced the offender on an antipsychotic and an antidepressant.

60. In March 2021 the offender said that he “heard voices” and in April 2021 he deliberately cut himself and was transferred to the Mental Health Screening Unit and treated and assessed for diagnostic clarification. The conclusion then reached was drug-induced psychosis. He improved but was readmitted in February 2022. He was treated with antipsychotics and recovered after a few months. He has been stable since then according to Dr White, although his engagement is stilted and superficial and he displays the negative symptoms of schizophrenia. He continues to be medicated and is compliant.

61. Initially the offender had the expert support of Dr Furst who was of the opinion that the offender was mentally ill at the time of offending or, at the least, was substantially impaired due to a condition of his mind. Dr Furst however withdrew that opinion during the trial prompting an immediate guilty plea to the offences.

62. Dr Eagle, a psychiatrist who assessed the offender in March and April 2022 and again in August 2023 has provided a very comprehensive analysis, which I accept, concluding that the offender may have had prodromal psychiatric illness or drug induced psychosis at the time of the offending, but that she is not persuaded - and nor am I - that he was in fact experiencing a psychosis at the time. He did have some psychological vulnerability, sensitivity to abandonment and insecure attachment style and possible social cognitive deficits identified by Dr Eagle.

63. With the passing of time, some further diagnostic clarity ensued, and in August 2023 Dr Eagle confirmed that a diagnosis of schizophrenia is valid. She still expressed uncertainty as to whether the offender was in fact experiencing emerging signs of schizophrenia as at the time of the offending noting his inconsistent self-reports, his use of stimulants and the clinical observations of trained staff around that time that he was showing no apparent signs of psychosis.

64. Dr Eagle concluded that if it is accepted that he had an emerging psychotic illness at the time of the offending, it is reasonable to assume that he had cognitive and functional deficits impairing to some extent his judgment at the time, but he was not psychotic, but instead was fixated, pursuing stalking behaviours. He was angry when he saw Daiane with another man and so he attacked her.

65. Dr Nielssen, psychiatrist retained by the offender concluded after his assessment of the offender in June 2023 that his current presentation (as at June 2023) was consistent with schizophrenia and substance use disorder in remission. He concluded that there were symptoms of psychosis noted three weeks after the offending and that trying to assess the offender’s state of mind at the time of the offending requires “speculation regarding the timing of onset of what is a severe and disabling form of mental illness”.

Principles of sentencing

66. The purposes of sentencing are articulated in s 3A of the Sentencing Act. These purposes overlap and cannot be considered in isolation from one another. They are:

1. to ensure that the offender is adequately punished for the offence.

2. to prevent crime by deterring the offender and other persons from committing similar offences.

3. to protect the community from the offender.

4. to promote the rehabilitation of the offender.

5. to make the offender accountable for his or her actions.

6. to denounce the conduct of the offender.

7. to recognise the harm done to the victim of the crime and the community.

67. In applying those purposes and assessing the offences, their objective seriousness and the offender’s subjective factors, the Court is required to carry out an instinctive synthesis to arrive at an appropriate sentence. In this case, the offender’s mental condition, although not one that prevents or modifies his convictions due to mental illness, does have a potential effect on other considerations in the sentencing exercise to which I will shortly come.

Objective seriousness

68. Whilst there is no obligation to place the objective seriousness of offending into a hypothetical range, I am required to make an assessment of objective seriousness of each of the offences. Obviously, the murder of Daiane was of very grave seriousness. Although not necessarily pre-planned, and more the result of an outburst of anger and jealousy, it was a vicious and prolonged attack. He armed himself with a large knife. He hid and attacked her when she entered the room alone. I cannot ignore the fact that there were stab wounds inflicted to her sexual organs. I firmly and completely reject any suggestion made by the offender in his account to police that Daiane did anything during this attack other than fight for her life while he repeatedly stabbed her, deliberately and without mercy. The terror and agony she suffered must have been immense. She was still alive when police arrived. There was the additional lack of mercy involved in failing to call for medical help when Daiane begged him to help her when the attack ceased. He very clearly intended to kill her.

69. Separately charged as count 1 on the indictment, the offender broke into Daiane’s home knowing she did not want him there, intending to frighten her. I conclude that this offence is above the midrange of seriousness for offences of this kind.

70. Regarding the assault of Mr Qaqos, I consider that to be at the lower end of objective seriousness, mainly because I accept that the offender had no particular focus on Mr Qaqos, who simply got in the way while trying to help Daiane and was cut by the knife being wielded by the offender.

Other aggravating factors

71. In his written submissions the Crown Prosecutor referred to various features of the offences which bear upon an assessment of their objective seriousness. I have already made reference to the ferocity of the attack and the limited planning involved: fetching the knife from the kitchen, and hiding: (Sentencing Act, s 21A(2)(a)).

72. The Crown Prosecutor referred to the fact that the murder involved the use of a knife (Sentencing Act, s 21A(2)(c)). That has already been addressed, although given the offence is murder, the fact that a knife was used adds little to the determination of objective seriousness: (Milat v R; Klein v R [2014] NSWCCA 29 at [95]).

73. The murder took place in Daiane’s home, a place where she is entitled to feel safe: (Sentencing Act, s 21A(2)(be)).

74. Given that the psychiatric expert evidence does not support a conclusion that mental illness or substantial impairment defences apply, I have assessed objective seriousness “without reference to matters personal… to the offender” and determined it “wholly by reference to the nature of the offending” consistently with Muldrock at [27].

75. The murder of Daiane was well above the midrange of objective seriousness, given all the aspects of it to which I have referred to.

Victim impact

76. Three victim impact statements were read in court. The first was written by Daiane’s daughter. She describes a loving mother who made life fun, happy and secure. In simple but heartbreaking terms, she described how that fun, happiness and security has all been taken away. What a terrible loss for a little girl who now has to navigate her teen years and the rest of her young life without her mother.

77. Daiane’s husband described the struggles their daughter now has, how afraid she is, how anxious she is, and the devastation caused to him as well by what the offender has done.

78. Daiane’s older sister Gisele described a determined, strong, brave, persistent and beautiful woman who is terribly missed - an irreplaceable little sister who cannot write anything more in the book of her life. I convey my own and the Court’s condolences to all of Daiane’s family and friends for the loss of this beautiful and brave young woman in these horrific circumstances.

The offender’s circumstances, remorse and prospects of rehabilitation

79. The offender was born in November 1994. He was 25 years and 8 months old at the time of the offending and is now 29 years and 3 months. He was born in Bankstown. His parents worked. He says that he was bullied at school. He did not do well at school. He started an apprenticeship in mechanics, then transferred to plumbing, then electrics. He failed TAFE. He sustained an injury at work that he says stopped him working.

80. He claims he was sexually abused by a relative whilst a young child. He used drugs, MDMA and occasionally Seroquel and alcohol. He had few, if any, friends. The family situation at home was tense. He was charged with assaulting his father in 2019 and sentenced to a 12-month conditional release order, reduced to 6 months on appeal with no conviction recorded. I accept that he has a limited criminal history and that is, to an extent, a mitigating factor.

81. He was, however, as a result of searches conducted on his room after the current offences, charged with possession of child abuse material and possession of a prohibited drug. He was sentenced on 22 February 2022 at Liverpool Local Court to a period of 20 months imprisonment commencing on 5 November 2020 and concluding on 4 July 2022, with a non-parole period of 12 months commencing 5 November 2020 and concluding on 4 November 2021.

82. In considering the question of totality, and to ensure that my sentence does not erase or undermine that earlier sentence for that other offending, I will make an adjustment to the commencement date of the sentence I will shortly impose, to ensure the criminality of that other offending is reflected and not subsumed by the sentence I will now impose, and to ensure the sentence for the combined offending is not unduly long or unfairly accumulated.

83. The offender pleaded guilty promptly after it became known his defences were unavailable. I accept the joint submission of the Crown Prosecutor and defence counsel that a 5% reduction to the sentence should be applied to reflect those guilty pleas: (Part 3, Division 1A, Sentencing Act). I also accept the joint submission that the offender facilitated the administration of justice in pre-trial disclosure and the way in which the trial was conducted.

84. I accept that the offender is remorseful.

85. The way which a court may take into account an offender’s mental illness or ill health was set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. At [177] McClellan CJ at CL provided the following parameters (citations omitted):

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: …. They can be summarised in the following manner:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

● It may reduce or eliminate the significance of specific deterrence.

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.”

86. The Crown Prosecutor submitted that I would not find any reduction in moral culpability for the offending simply because the offender has a subsequent diagnosis of schizophrenia. He submitted that the evidence is speculative as to whether the offender even had the effects of the prodromal phase of that illness at the time of the offending. Dr. Eagle is of the view that it does not apply. The bodycam footage and what the offender said in that immediate aftermath showed that he knew what he had done and why he did it. The Crown Prosecutor went on to submit that any self-serving accounts given later should be dismissed as untrue. The true position, submitted by the Crown Prosecutor, is that the offender got angry. He wanted to “catch her out”.

87. These are all signs that the application of De La Rosa considerations along the lines of what I have just outlined to the question of the offender’s moral culpability for the offences, should not be applied to that aspect of the sentencing exercise in order to reduce the potential sentence of imprisonment.

88. Counsel for the offender submitted that the relevance of the offender's mental health condition to sentence was that his condition makes his time in custody more onerous, although acknowledging that he is remaining relatively symptom-free on his current medication and progressing well.

89. Having carefully considered all the expert evidence, I am not satisfied that the psychiatric evidence supports a reduction in moral culpability on the basis that the offender's condition contributed to commission of the offences in a material way. Even if the evidence rose high enough for a finding on the balance of probabilities that he was suffering prodromal schizophrenia at the time of the offending - and in my view it does not - there is nothing mandating reduction in moral culpability in those circumstances.

90. I do, however, accept the submission of defence counsel that the offender is an inappropriate vehicle for general deterrence given the complexity of his personality vulnerabilities as articulated by Dr Eagle, and in that circumstance, the significance of specific deterrence is also consequently slightly reduced. I also accept his time in custody will be onerous for him, given his schizophrenia. Whilst currently well on medication, there is no guarantee this will always continue to be the case.

91. With appropriate psychiatric and psychological support, to the extent it can be forecast now, I consider the offender's prospects of rehabilitation to be fair.

92. I have read the comparable cases provided by counsel for consideration and, to the limited extent they assist me, given the very specific factual circumstances of this case, I have taken those cases into account.

93. Taking into account all of the outlined considerations and adjustments, I have decided to impose an aggregate sentence for the three counts on the indictment and a separate wholly concurrent sentence for the Form 166 matter. I consider the Form 166 offence to be sufficiently closely aligned to counts 1 and 2 that the criminality can be comprehended by that aspect of the aggregate sentence I will impose.

94. I have adjusted the commencement date for the sentence of imprisonment I will now impose to take into account the separate sentence imposed in February 2022 for the possess child abuse material and drug possession.

95. The indicative sentences are as follows:

• Count 1 - 4 years imprisonment with a non-parole period of 3 years;

• Count 2 - for the murder of Daiane Pelegrini - 24 years imprisonment with a non-parole period of 18 years;

• Count 3 - the assault on Mr Qaqos - 2 years with a non-parole period of 18 months.

96. Although all of the offences occurred within a short space of time and at that one place, they have different criminality and this needs to be reflected in the overall sentence I impose.

97. For the offence on the Form 166 certificate of using carriage service to menace, harass and offend, I sentence the offender to a period of 6 months imprisonment, to be served concurrently with the sentence I now impose for the three counts on the indictment.

98. I convict the offender for each of the offences on the indictment.

99. David Tran, please stand. I sentence you to a total period of imprisonment of 28 years commencing 3 February 2021 and ending 2 February 2049, with a non-parole period of 21 years commencing 3 February 2021 and ending 2 February 2042. The first date you are eligible to be released to parole is 2 February 2042.

100. Now, just sit down while I tell you another matter. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act, which applies to serious offences, including the offence of murder for which you have just been sentenced. This means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you to be a high-risk offender who poses an unacceptable risk of committing a serious offence.

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Amendments

22 February 2024 - Par 13: redaction

Decision last updated: 22 February 2024